Brief Urges Legislators To Create Enforcement Agency

In the past 10 to 20 years, quite a bit of progress has been
made in the area of crime victims’ rights, due largely
in part to the work of interest groups convincing the public
that victims’ rights are an issue and leading to changes
in state and federal laws and procedures.

“The fact that we have a Crime Victims’ Compensation
Fund, for example (in Texas)—which is designed to provide
assistance to victims, whether it’s medical, cleaning
up a crime scene, moving, lost wages, all that kind of stuff—to
help those victims who aren’t able to shoulder that
burden on their own, those are real positive things,”
said Glen Kercher, professor of criminal justice and director
of SHSU’s Crime Victims’ Institute.

However, more is needed, namely an agency that would ensure
that victims’ rights are maintained, as well as ensure
that there is recourse for a victim when their rights are
denied.

That was the suggestion Kercher, along with graduate student
Matt Johnson, recently made in a legislative brief the two
wrote for the Texas Legislature giving the background of agencies
across the country that handle such matters.

The four-page document sent to legislators in Texas outlines
agencies in Colorado, Connecticut, South Carolina, Wisconsin,
Minnesota, Alaska and Arizona. The brief looks at the similarities
and differences of the agencies, as well as how they operate
and which are most effective.

“Almost every state in the union has somehow provided
a statutory basis for crime victims’ rights. In Texas,
it is an amendment to our State Constitution, the Bill of
Rights for Crime Victims,” he said. “This is kind
of an educational piece: here are what the rights of crime
victims are, but what was missing was what if those rights
are not, in fact, delivered? What if they’re violated?
What recourse does a victim have?”

Victims’ rights, according to the Texas Crime Victims
Bill of Rights, vary somewhat depending on the type of crime.
In a violent crime, for example, the victim has a right to
know if other financial resources available to them and the
right to be present at all public court proceedings related
to the offense, among others.

“Suppose that the attorneys and the judge meet and work
out a plea agreement with the offender. Does the victim have
a right to say something about that?” Kercher said.
“In Texas, they do not. We’re trying to change
that, but so far, the victim does not have that right.”

That seems to be opposed to the intent of the provision in
the Constitution because allowing the victim to be present
when a plea agreement is accepted by the courts is somewhat
“after-the-fact, because it’s already a done-deal,”
according to Kercher.

“The victim can stand in court and try to get the attention
of the court, but they don’t have to recognize the victim,”
he said. “I’ve had victims write me or leave messages
talking about the victimization and how the DA (district attorney)
and the judge are negotiating a plea that the victims are
vehemently opposed to, and they say, ‘the courts are
going to go ahead with it anyway; do we have to accept it?’

“In Texas, they don’t have any recourse; they
have to accept it,” he said. “They can rant and
rave all they want, but it’s at the court’s discretion.”

That discretion is what makes the need for an agency to support
victims’ rights even more of a necessity, he said.

“A lot of, or some, judges are not eager to have victims
too prominent in prosecutions because it slows down the process,”
Kercher said. “They have a heavy docket, they want to
clear the docket, and when we start insisting that victim
rights be honored, they’re going to be displeased because
it slows it down. It’s somewhat of a conflict.

“Courts, judges and prosecutors, have a lot of discretion
at how cases are handled and how they settle a case,”
he said. “If victim rights are going to be honored,
if a victim is going to have a voice, there will of necessity
be some curtailing of that discretion, and that’s what
makes it really controversial.”

Kercher’s solution, what he suggests in the brief, is
to create an agency in Texas similar to the one in Alaska.

“They went a long way in ensuring the autonomy of that
agency, that is they are relatively free of reprisals from
the legislature, from judges, from whomever,” he said.
“It insulates them a little bit, and that’s an
important piece.

“The reason I like what Alaska did is it insulates the
ombudsman from a lot of political pressure,” he said.
“Given the sensitive nature of an ombudsman’s
job, that’s a really important element that they be
fiscally independent and they be fairly independent.”

The agency would have the authority to make inquiries, obtain
information, the power of subpoena and even, in some cases,
institute legal sanctions against people who are cooperating
with an investigation.

While Kercher said there isn’t any data to show how
often victims’ rights are infringed upon in any state,
it was a common enough occurrence for the seven states to
do something to remedy the situation.

“Based on the experiences of other states, there is
some merit to doing that,” he said. “The State
of Alaska opened 240 cases over the course of a year, July
’03 to June ’04—240 cases. Alaska is a sparsely
populated state; if you can project that into a state like
Texas, we’re talking about thousands of cases.”

The report has received complimentary feedback from the speaker
of the house, who “seemed interested in doing something
with it.”

And while the process will be a long one, he sees it as a
good thing, Kercher said.

“We hope it will (make a difference), but our job is
not to lobby the legislature. In fact, as a state agency we
cannot do it. Ours is simply to provide information and hope
that it catches someone’s attention and they move on
it,” he said. “It’s something that the victims
want; understandably they do.”